Braithwaite v. Collins

1

KESTON BRAITHWAITE, Plaintiff, v. HONORABLE JOHN B. COLLINS, Justice Supreme Court, Suffolk County; TIMOTHY SINI, District Attorney, Suffolk County; MEAGHAN POWERS, Assistant District Attorney, Suffolk County; WAYNE HETER, Suffolk County Police Department; JOHN DOE, Suffolk County Police Department; HON. TIMOTHY P. MAZZEI, Justice Supreme Court; JACOB KUBETZ, Assistant District Attorney, Suffolk County; BRIAN M. KARP, D/SGT. Badge # 0639, Suffolk County Police Department; MICHAEL COSGROVE, D/SGT. Badge # 0539, Suffolk County Police Department; DANIEL FISCHER, D/SGT. Badge # 0611, Suffolk County Police Department; GHYSLINE C. MCBEAN, Badge # 1212, Suffolk County Police Department; RICHARD PALAZZOLO, Badge # 1323, Suffolk County Police Department; MICHAEL PAPOCCHIA, Suffolk County Police Department; SEAN C. COMISKEY, Badge # 1251, Suffolk County Police Department; CHARLES FLACKER, Badge # 1334, Suffolk County Police Department; ERIK M. PERELLI, D/SGT. Badge # 633, Suffolk County Police Department; DETECTIVE NEKNEZ, Badge # 1515, Suffolk County Police Department; DETECTIVE CIANFROGNA, Badge # 1475, Suffolk County Police Department; DETECTIVE KROLIKIEWICZ, Badge # 1531, Suffolk County Police Department; DETECTIVE SALEH, Badge # 1533, Suffolk County Police Department; DETECTIVE COLBY, Badge # 1656, Suffolk County Police Department; JOHN DOE #2, Foreperson/ Grand Juror No. 8A; JOHN DOE #3, Assistant Foreperson/Grand Juror No. 8A; JOHN DOES #4-21; Clerks of the Court at 210 Center Drive, Riverhead, NY; JOHN DOE #22, Assistant District Attorney; SUFFOLK COUNTY POLICE DEPARTMENT; SUFFOLK COUNTY DISTRICT ATTORNEY OFFICE; JASON RUSSO, ESQ.; STEVEN GAITMAN, ESQ.; GAITMAN & RUSSO, PLLC; and, STEVE FONDULIS, ESQ., Defendants.

KESTON BRAITHWAITE, Plaintiff, v. UNITED STATES, The Capitol; TASK FORCE OFFICER CORSO, United States Marshal; BRIAN GRAZIDEI, United States Marshal; JOHN SEYMOUR, United States Marshal; KENNETH LOPEZ, United States Marshal; JASON LANGOIS, United States Marshal; Defendants.

KESTON BRAITHWAITE, Plaintiff, v. STATE OF NEW YORK, Office the Attorney General; SUFFOLK COUNTY NEW YORK, H. Lee Dennison Building; WAYNE HETER, Suffolk County Police Department; BRIAN KEEGAN, Suffolk County Police Department; Defendants.

KESTON BRAITHWAITE, Plaintiff, v. SUFFOLK COUNTY NEW YORK, H. Lee Dennison Building; NEW YORK STATE, Office of the Attorney General; RAYMOND TEIRNEY, District Attorney, Suffolk County; JACOB KUBETZ, Assistant District Attorney, Suffolk County; MEAGHAN POWERS, Assistant District Attorney, Suffolk County; KATE WAGNER, Assistant District Attorney, Suffolk County; JOHN DOE, Chief of Special Narcotics Suffolk County; HONORABLE TIMOTHY MAZZEI, Supreme Court Justice; HONORABLE JOHN COLLINS, Supreme Court Justice; Defendants.

KESTON BRAITHWAITE, Plaintiff, v. STATE OF NEW YORK, Office of the Attorney General; SUFFOLK COUNTY, NEW YORK, H. Lee Dennison Building; ERIC M. PERELLI, Suffolk County Police Department; DETECTIVE NEKNEZ, Suffolk County Police Department; DETECTIVE CIANFROGNA, Suffolk County Police Department; DETECTIVE SALEH, Badge # 1533, Suffolk County Police Department; DETECTIVE COLBY, Badge # 1656, Suffolk County Police Department; Defendants.

KESTON BRAITHWAITE, Plaintiff, v. JACOB KUBETZ, Assistant District Attorney, Suffolk County; WAYNE HETER, Suffolk County Police Department; T-MOBIL U.S. INC., Telephone Carrier; VERIZON, Telephone Carrier; SYTECH CORPORATION, Innovator of Wiretap Systems; Defendants.

Nos. 22-CV-00161(JS)(AYS), 22-CV-5070(JS)(AYS), 22-CV-5071(JS)(AYS), 22-CV-5073(JS)(AYS), 22-CV-5074(JS)(AYS), 22-CV-5359(JS)(AYS)

United States District Court, E.D. New York

March 3, 2023

For Plaintiff: Keston Braithwaite, pro se

For Defendants: No appearance.

MEMORANDUM AND ORDER

Joanna Seybert, U.S.D.J.

Before the Court are the applications to proceed in forma pauperis (“IFP”) (hereafter, the “IFP Applications”) filed by incarcerated pro se plaintiff Keston Braithwaite (“Plaintiff”)^[1] in relation to his Complaints filed in the cases, captioned above, that challenge an underlying state criminal investigation, prosecution, and his conviction arising therefrom.^[2] (See Case Docket Nos. 22-CV-5070, 22-CV-5071, 22-CV-5073, 22-CV-5074 and 22-CV-5359 (collectively, the “Post-Conviction Cases”), IFP Applications, ECF Nos. 2, respectively; see also Post-Conviction Cases, Compls., ECF Nos. 1 respectively (collectively, the “PostConviction Complaints”).) In addition, Plaintiff has moved to reopen his original case in this Court, assigned Case No. 22-CV-00161 (hereafter, the “First Case”), following his conviction. (See First Case, No. 22-CV-00161, Re-Open Motion, ECF No. 31.) For the reasons that follow, Plaintiff's: (1) IFP Applications are GRANTED; (2) Motion to Re-Open the First Case is GRANTED; (3) PostConviction Complaints are CONSOLIDATED into the First Case (No. 22-CV-00161); and (4) claims are sua sponte DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

BACKGROUND^[3]

I. Procedural History

Plaintiff's Post-Conviction Complaints addressed in this Memorandum and Order, with notable overlap, all relate to the manner in which the Suffolk County District Attorney's Office, the individual assistant district attorneys, police officers and the Suffolk County Police Department, the United States and United States Marshals secured his grand jury indictment and conviction in the underlying state court criminal prosecution. Plaintiff also seeks to challenge the conduct of various actors involved in his underlying criminal proceedings, to wit, the state court judges, his criminal defense attorneys, the jurors, court clerks, and cellular service providers who allegedly conspired to convict him.

Given the volume of Plaintiff's filings addressed herein, which collectively total approximately 900 pages, the Court recites the relevant history and facts necessary to understand its determination reached in this Memorandum and Order.

A. Plaintiff's First Case, 22-CV-0161(JS)(AYS)

On January 10, 2022, while a pre-trial detainee on state criminal charges, Plaintiff filed a 52-page complaint against some 50 defendants using the Court's Section 1983 Complaint Form with 47 additional, handwritten pages attached. (See First Case, Compl., ECF No. 1.) The gravamen of Plaintiff's Complaint was that he was being unfairly prosecuted in state court during his then on-going criminal prosecution. (See generally id.)

Thereafter, following Plaintiff's attempt to supplement his First Case Complaint, the Court permitted “Plaintiff to file an amended, stand-alone complaint” which he did. (See First Case, Feb. 11, 2022 Order, ECF No. 13;^[4] Am. Compl. ECF No. 19.)

The 243-page Amended Complaint (hereafter, the “First Case Amended Complaint”) was brought against 43 defendants^[5] raising 24 causes of action challenging his then on-going state court prosecution. According to the First Case Amended Complaint, the investigation leading to Plaintiff's arrest, his arrest, and his on-going prosecution violated Plaintiff's constitutional rights. Plaintiff alleged improprieties with, inter alia, wiretaps, video surveillance, his arrest, and court appearances (including the representation by his attorneys) and set forth broad claims of judicial and prosecutorial misconduct for which Plaintiff sought “the dismissal of all charges” in addition to $100 million in compensatory and punitive damages. (See First Case, Am. Compl. generally and at 241-42 (Part III: Relief).)

By Memorandum and Order dated May 23, 2022, the Court granted Plaintiff's application to proceed in forma pauperis and sua sponte: (1) dismissed without prejudice Plaintiff's claims seeking injunctive relief (i.e., intervention in the ongoing state court criminal proceedings by dismissing the charges against Plaintiff) pursuant to Federal Rule of Civil Procedure 12(h)(3); and (2) stayed Plaintiff's claims seeking damages pending the conclusion of the underlying state criminal case with leave to reopen the First Case “within 30 days of the conclusion of his state court criminal proceedings, if so warranted at that time.” (See First Case, Memorandum & Order, ECF No. 21, in toto and at 10-11 (emphasis omitted).)

On July 18, 2022, in Suffolk County Court, Criminal Term, Case No. 00308C-2020, Plaintiff was convicted by a jury on a multi-count indictment including Operating as a Major Trafficker, a class A-1 felony, and Conspiracy in the Second Degree, a class B felony; he was sentenced on September 23, 2022. See Braithwaite v. Gaitman, et al., No. 22-CV-00974(JS)(AYS), Memorandum & Order (ECF No. 19) at 3 n.3 (citing https://iapps. courts.state.ny.us/webcrim (last visited on Sept. 16, 2022)). On September 30, 2022, Plaintiff timely requested that his First Case be re-opened given the conclusion of the state court criminal proceeding on September 23, 2022. (See Re-Open Motion, ECF No. 31 (dated Sept.26, 2022) .)

B. Plaintiff's Post-Conviction Complaints^[6]

1. Case No. 22-CV-5070(JS)(AYS), Braithwaite v. United States, et al.

Plaintiff's 21-page Complaint names the United States and five United States Marshals: Task Force Officer Corso (“Corso”), Brian Grazidei (“Grazidei”), John Seymour (“Seymour”), Kenneth Lopez (“Lopez”), and Jason Langois (“Langois”); in it, Plaintiff challenges the alleged warrantless search of his apartment on May 19, 2020, and his warrantless arrest. (See Case No. 22-CV-5070(JS)(AYS), Compl., ECF No. 1, in toto.) Plaintiff used the Court's civil rights complaint form, checking the box indicating that his claims are brought pursuant to Bivens.^[7] (Id. ¶ II. A.) He seeks to recover a damages award in the sum of $10 million. (Id. at 17.)

2. Case No. 22-CV-5071(JS)(AYS), Braithwaite v. State of New York, et al.

This 28-page Complaint is brought pursuant to 42 U.S.C. § 1983...